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North Carolina Law about to Take Effect Threatens Public Disclosure of Charlotte Police Video

The family of Keith Scott, local and national civil rights groups, and media outlets are urgently calling for the immediate release of dashboard and body-worn camera videos that show the police shooting of Scott.

In the name of transparency, accountability and racial justice, Charlotte–Mecklenburg Police Department Chief Kerr Putney should reverse his decision to withhold the videos and release them to the public.

The call for the release of the Scott video comes only days before a new North Carolina law takes effect that is designed to significantly limit public access to such police recordings.

There is a small window between today and October 1 for Putney to act on his own and release the tapes. That is because North Carolina law, while exempting police video recording from the public open documents law, does not expressly prohibit police chiefs like Putney from releasing such recordings.

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That all changes October 1, when a new law passed by the North Carolina legislature and signed by the governor takes effect. At a time when civil rights groups, community leaders, and police reform organizations are succeeding in making transparency and accountability in policing a national priority, North Carolina’s new law is a big step backward when it comes to openness. For example, it would even prohibit police departments who want to release police videos from doing so without prior court approval.

Below is a summary of a couple of key provisions of the law, one relating to limited disclosures to individuals who appear in the police video, and another relating to broader requests to release police videos to the public.

Disclosure of Police Videos

Under one section of the new law, North Carolina police departments are permitted (but not required) to disclose police videos only to persons whose image or voice is in the recording (or their representative). This includes the personal representative of a deceased person whose image in the recording, so families such as Keith Scott’s would be able to make a request that the video be disclosed under the law. The law has a very limited definition of disclosure: individuals depicted in the video can only privately view the recording (again, only at the discretion of the police department) at a time and location set by such department. During the viewing, the individuals may not copy or record or receive a copy of the video without a court order. Further, the police may limit viewing of video that is “relevant to the person’s request.” Presumably, this would allow the police to selectively edit the video, thus denying the family the ability to see the entire video in some cases.

If a police department refuses a request to disclose a police video, and an individual depicted in the video they may appeal to the courts (as noted above, the Scott family was granted the right to see the videos last night). The law creates several procedural barriers to obtaining a court order against a police department. For example, the individual would have to prove that the law enforcement agency “abused its discretion in denying the request for disclosure.” Proving “abuse of discretion” of public officials is notoriously difficult, especially with cases in which the court is sitting in judgment of police officers and in which the underlying statute itself already gives the police agency broad discretion to refuse disclosure. An individual may not obtain attorney fees and costs, even if the court finds the agency abused its discretion, and the law even waives liability against police agencies who fail to comply with the law in most cases. Finally, no action can move forward unless applicable law enforcement agencies and employees are afforded a right to be heard “at any proceeding” to consider disclosures of videos.

Public Release of Police Videos

The law permits the public release of police videos only through a court order. A law enforcement agency or any other person would have to go to court in order to request that a particular police video be released to the public. The law provides no right for the public access police videos, even in cases of serious, contested, and controversial police actions.

Under the new law, North Carolina courts are granted wide discretion whether to release any police video. If an action is brought to force disclosure, the court must consider, among other things, whether the release of the video is necessary to advance a compelling public interest, and if there is good cause to release all portions of such video. The court also has to determine if the release would create a “serious threat to the fair, impartial, and orderly administration of justice” or if confidentiality is necessary to protect either an active or inactive or potential internal or criminal investigation. The vague standards give plenty of cover for a judge not inclined to release the video, with little risk of being overturned by a higher court. At the same time, the new law does nothing to encourage North Carolina courts to be more transparent about, or accountable for, potential police abuses.

Chief Kerr Putney may feel his department is under siege, but his instinct to shield the videos from public scrutiny is already backfiring. Residents of Charlotte—especially African Americans who already doubt the fairness and objectivity of law enforcement—will feel more distrustful and cynical about his leadership and the police officers he leads.

If Putney refuses to release the video by October 1, the new law allows the Scott family or any other person may file a legal action under the new law to push for the public release of the videos. The court is required to schedule a hearing “as soon as practicable” and such action shall be “accorded priority by the trial and appellate courts.”

The courts should start doing their homework now, and be prepared to take decisive action to review and release the Scott police videos should the police fail to disclose them prior to October 1.

Mark Zuckerman is President of The Century Foundation, served as President Obama's Deputy Director of the White House Domestic Policy Council from 2011 to 2013, and is a former Democratic Staff Director of the U.S. House Education and Workforce Committee.